LAW EXTENSION COMMITTEE

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WINTER 2017

26 UNDERSTANDING LEGAL LANGUAGE AND LEGISLATION

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ASSIGNMENT

INSTRUCTIONS

In Understanding Legal Language and Legislation, there is only ONE ASSIGNMENT. This assignment is compulsory and must be submitted by all students. The assignment will constitute 20% of the final mark in this subject.

Assignments must be submitted by the due date unless an extension has been granted. Extensions need to be requested by email prior to the assignment due date and specific supporting evidence provided. Late assignments attract a penalty of one mark out of 20, or 5% of the total marks available, per day. A pass mark is 50%. Assignments that are received more than ten days after the published due date will not be accepted. Please note that students granted an extension must still submit their assignment within ten days of the original assignment due date.

Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined in the Guide to the Presentation and Submission of Assignments. Prior to the examination, assignments will be returned to students and results posted on students’ individual Results screen of the LEC Webcampus. Students are responsible for checking their Results screen and ascertaining their eligibility to sit for the examination.

The rules regarding the presentation of assignments and instructions on how to submit an assignment are set out in the Guide to the Presentation and Submission of Assignments available on the LEC Webcampus. Please read this guide carefully before completing and submitting this assignment.

The maximum word length for this assignment is 2000 words (inclusive of all footnotes but not bibliography).

Completed assignments should be lodged through the LEC Webcampus and received by 11:59pm (Australian Eastern Standard Time) on Monday 24 July 2017.

Please download the Assignment Coversheet. The coversheet will be the first page of your assignment. Save it with the name you intend to use for the assignment, and begin your answer on the second page. Make sure you complete the Assignment Coversheet by entering in your Full Name and Address Details and the Date you lodged your assignment on the Webcampus. Next to “Signed”, type your name to acknowledge that the assignment is your own work.

COMPULSORY ASSIGNMENT

Question One: 10 marks

Read Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 and answer the following questions. Where relevant you should provide references to the case to support your answers. You should paraphrase, rather than seeking to find exact quotes to answer the question. This is not a comprehension exercise – it is asking you to think about how statutory interpretation works in practice. You will need to read and think about the underlying law of statutory interpretation, and refer to that as appropriate when answering these questions. There is no need to read the lower court judgements – the High Court appeal should be sufficient to answer these questions.

1.  What are the issues in the appeal?

2.  Which of these issues will require the Court to engage in statutory interpretation? Why?

3.  Briefly summarise the facts of the case. How does an issue of statutory interpretation arise from these facts?

4.  Which Act, and which sections, are the focus of the interpretation?

5.  The High Court begins by setting out the objects of the Broadcasting Services Act? Why?

6.  Why does the Court refer to a legislative scheme? What is the relationship between the Broadcasting Services Act and the Australian Communications and Media Authority Act? Read from 3.36 – to 3.39 (inclusive) in your text books. Are these Acts in pari materia? Why? Why not? Why is this question important?

7.  What was the Full Court’s starting point for their analysis? What is the Authority’s view of this general principle? What is the plurality’s position?

8.  The plurality’s construction begins at [35]. What is the first thing they do? What interpretative approach are they using here?

9.  For the purposes of interpretation, why is Today FM’s argument that the phrase “commission of an offence” is ambiguous, important?

10.  Why does the High Court refer to cl (8)(1)(a)? What interpretative principle are they using here?

11.  What is the principle of legality? Is its source statutory or the common law? Why is it relevant in statutory interpretation? What is Gageler J’s view of this principle?

12.  Identify the three sources referred to by the plurality to reject Today FM’s preferred construction of cl(8)(1)(g).

13.  The High Court at [46] discusses the purpose of the provision. To what provision are they referring? Is the purpose of the provision the same as the purpose of the Broadcasting Services Act? How does the High Court determine the purpose of the provision? Consider also the discussion at [47].

14.  Why does Gageler J reject the Full Court’s reasoning on the question of how the statute in question is to be interpreted?

15.  What difference between US and Australian principles of interpretation does he identify? On which statutory provisions does he rely?

16.  The High Court makes repeated references to Balog v Independent Commission Against Corruption. In doing this, are they referring to extrinsic materials? Are they citing precedent? Why? Why not?

17.  In Project Blue Sky, the High Court said, at [70]:

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals

Is this the approach Gageler J is using at [72] and [73].

18.  What is the High Court’s conclusion?

19.  Do you agree? Or do you support the view of the Full Court?

20.  What was the outcome for Today FM?

Question Two: 10 marks

This question will be marked out of 50 then converted to a mark out of 10.

There are 20 parts to this question: (A) to (T). Each part is worth 2 marks for a maximum of 40 marks.

Another maximum 10 marks will be awarded on the basis of your answers to any questions asking for a complete citation being formatted in a style that adheres to the guidelines set out for footnoting in the Australian Guide to Legal Citation (3rd edition).

Note that you do not need to use footnotes for this question. Just format answers to any questions asking for a complete citation in a manner that is consistent with AGLC.

Marks will be deducted for errors and incorrect citation.

The following questions concern the case Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 and legal sources referred to in this case.

(A) Provide a complete citation (including party names) pinpointing the page of the law report referred to in the citation above where the judgment of Gageler J begins.

(B) Provide a complete citation (including party names) for this case, citing an alternative law report series to the law report referred to in the citation above.

(C) Provide the medium neutral citation for this case (again, provide a complete citation, including party names).

(D) Provide a complete law report citation for a 2015 case from the New South Wales Supreme Court: Court of Appeal that considered Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352. The case cited must have been published in a law report and a complete law report citation provided.

(E) Provide a complete citation for a journal article which refers to Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352.

(F) The case Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 is relevant to the issue of commercial radio regulation in Australia today. Provide a complete citation for a book published in 2015, held in the collection of the University of Sydney Library, dealing in part with the topic of commercial radio regulation in Australia.

(G) The case Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 is briefly mentioned in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352. Provide a complete citation for an Australian Law Reform Commission report that also refers briefly to the Project Blue Sky case.

(H) The Australian Communications and Media Authority Act 2005 (Cth) is an important piece of legislation discussed in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352. What was the date of assent of the Act? What was the date of commencement of most of the sections in the Act?

(I) Provide a complete citation for the most recent Act to have amended section 10 of the Australian Communications and Media Authority Act 2005 (Cth)?

(J) Provide a complete citation for the Act responsible for repealing and substituting section 12 of the Australian Communications and Media Authority Act 2005 (Cth)?

(K) Which schedule of the Act referred to in your answer to Part (J) contains the required substitution to section 12 of the Australian Communications and Media Authority Act 2005 (Cth)?

(L) Section 12(1) of the original, as made, version of the Australian Communications and Media Authority Act 2005 (Cth) had how many lettered subsections?

(M) Who circulated to the House of Representatives the explanatory memorandum for the relevant bill related to the Australian Communications and Media Authority Act 2005 (Cth)?

(N) Provide a word for word transcript of the first sentence of the second paragraph of the Minister’s second reading speech for the relevant bill related to the Australian Communications and Media Authority Act 2005?

(O) Another relevant piece of legislation in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 is the Surveillance Devices Act 2007 (NSW). What was the date of assent and date of commencement of this Act?

(P) Provide a complete citation for the Act responsible for first amending section 8 of the Surveillance Devices Act 2007 (NSW).

(Q) What was the date of commencement of the amendment referred to in your answer to Part (P)?

(R) Provide a complete citation for the relevant bill related to the Surveillance Devices Act 2007 (NSW), pinpointing in your citation the clause dealing with prohibition or communication of private conversations or recordings of activities.

(S) On what date was the bill referred to in your answer to Part R passed by the New South Wales Legislative Assembly?

(T) Who read the second reading speech to the bill referred to in your answer to Parts (R) and (S) in the New South Wales Legislative Council, and on what date?

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